GANGA RAM SHARMA Vs. KASHMIRI DEVI

JUDGEMENT

(1.) IN order to appreciate the controversy between the parties a few facts have to be stated in detail. Smt. Kashmiri Devi claiming to be the landlord of the accommodation in suit filed a suit for eviction against Ganga Ram Sharma, her tenant. According to the Plaintiff the rent of the disputed accommodation was Rs. 90/ - per month and the same had not been paid even though a notice of demand in respect at Rs. 3240/ - representing the arrears of rent and for terminating the tenancy was served on -opposite party No. 1 since a part of the claim had become barred by time, she had claimed for a decree for a period from 18 -2 -1971 to 18 -2 -1974.

(2.) THE suit was contested by Ganga Ram Sharma on the ground that Smt. Kashmiri Devi is not the landlord and himself claimed to be the owner of the disputed accommodation. Ganga Ram Sharma also claimed that he is not a defaulter and that no rent is due against him. The case of Ganga Ram Sharma is that he had executed a sale deed in favour of Smt. Kashmiri Devi in respect of the disputed accommodation and simultaneously executed a deed of reconveyance. In the deed of reconveyance it was mentioned that the disputed accommodation shall be reconveyed if within a year the entire sale consideration is paid to Smt. Kashmiri Devi. The period fixed by the deed of reconveyance was extended upto 15 -3 -1973. The case of Ganga Ram Sharma was that he tried to pay the amount during this period to Smt. Kashmiri Devi but she refused and consequently a suit was filed for specific performance of contract which was decreed on 11 -1 -1977. Ganga Ram Sharma also claimed that he had complied with the decree in order to get the decree for specific performance of contract executed. In a nutshell the case of the Petitioner is that he is not the tenant of the accommodation in question. The trial Court decreed the suit of Smt. Kashmiri Devi for ejectment of Ganga Ram Sharma from the accommodation in question and for arrears of rent. A copy of the judgment rendered by the trial Court is annexure 1 to the petition. A perusal of the said judgment would indicate that one of the issues framed in the case was whether Smt. Kashmiri Devi was the landlord of the accommodation in question and whether she was entitled to rent at the rate of Rs. 90/ - per month. A perusal of the judgment also indicates that the dispute between the parties was whether the relationship of landlord and tenant existed between Smt. Kashmiri Devi and Ganga Ram Sharma. It is not in dispute that aggrieved by the judgment and decree annexure -1 Ganga Ram Sharma filed an appeal in the Court of the District Judge, Sitapur. In the appeal the decision annexure -1 has been challenged which mean that the question whether Smt. Kashmiri Devi is or is not the landlord of the accommodation is in dispute in appeal. In other words the question whether the relationship of landlord and tenant exists between Smt. Kashmiri Devi and Ganga Ram Sharma or not was in issue before the trial Court and is in issue before the Court of Appeal.

(3.) THE contention of the learned Counsel for the Petitioner is that in the trial Court there was a dispute whether Smt. Kashmiri Devi is the landlord of the accommodation in question and the question whether relationship of landlord and tenant existed or not between Smt. Kashmiri Devi and Ganga Ram Sharma. This question was again involved in the appeal preferred by Ganga Ram Sharma before the District Judge, Sitapur. It is contended that since the question of landlord and tenant is in dispute before the appellate Court the provision of Order XV Rule 5 Code of Civil Procedure will have no application. The said provision, according to the Petitioner applies only to those cases in which admittedly there is no dispute that the relationship between landlord and tenant exist between the Plaintiff and the Defendant and the suit for ejectment or for arrears of rent or for both proceed on the assumption of the existence of relationship of landlord and tenant between the parties. Since this question is in issue in appeal, the provision of Order XV Rule 5 Code of Civil Procedure will not apply in the instant case.